UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4598
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PHILLIP EUGENE HILL,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00023-MR-DLH-6)
Submitted: March 29, 2011 Decided: April 11, 2011
Before WILKINSON, MOTZ, and WYNN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Chiege O. Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU OKWARA,
Charlotte, North Carolina, for Appellant. Anne M. Tompkins,
United States Attorney, Richard Lee Edwards, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Phillip Eugene Hill pled guilty, pursuant to a written
plea agreement, to one count of conspiracy to possess with the
intent to distribute fifty grams or more of cocaine base, in
violation of 21 U.S.C.A. § 841(a)(1) (West 2006 & Supp. 2010)
and 21 U.S.C. § 846 (2006). The district court determined that
Hill was a career offender under the U.S. Sentencing Guidelines
Manual (“USSG”) (2008) and, after granting the Government’s USSG
§ 5K1.1, p.s., motion, sentenced Hill to 210 months’
imprisonment. Hill appeals his sentence and argues on appeal
that the district court erred in sentencing him as a career
offender and trial counsel rendered ineffective assistance.
Relying on the waiver of appellate rights in Hill’s plea
agreement, the Government urges the dismissal of this appeal.
We dismiss in part and affirm in part.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v. Poindexter,
492 F.3d 263, 270 (4th Cir. 2007). Generally, if the district
court fully questions a defendant regarding the waiver of his
right to appeal during the plea colloquy performed in accordance
with Fed. R. Crim. P. 11, the waiver is both valid and
enforceable. See United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005). The question of whether a defendant validly
waived his right to appeal is a question of law that this court
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reviews de novo. United States v. Blick, 408 F.3d 162, 168
(4th Cir. 2005).
After reviewing the record, we conclude that Hill
knowingly and voluntarily waived the right to appeal his
sentence, except based on claims of ineffective assistance of
counsel or prosecutorial misconduct, and that the magistrate
judge fully questioned Hill regarding the appeal waiver at the
Fed. R. Crim. P. 11 hearing. Accordingly, the waiver is valid.
Hill claims that the appeal waiver is not enforceable
against him because the Government breached the plea agreement
by arguing at sentencing for the application of the career
offender Guideline, even though it had not filed notice under
21 U.S.C. § 851 (2006) of its intent to seek enhanced penalties
against him. This court “will not enforce an otherwise valid
appeal waiver against a defendant if the government breached the
plea agreement containing that waiver.” United States v. Cohen,
459 F.3d 490, 495 (4th Cir. 2006). The government breaches a
plea agreement when a promise it made to induce the plea goes
unfulfilled. See Santobello v. New York, 404 U.S. 257, 262
(1971). Because Hill did not raise his claim of breach in the
district court, we review it for plain error. See Puckett v.
United States, 129 S. Ct. 1423, 1428-29 (2009).
After review of the record, we conclude that the
Government was not obligated by the terms of the plea agreement
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to refrain from arguing at sentencing for the application of the
career offender Guideline to Hill. Accordingly, the Government
did not breach the plea agreement by so arguing without having
filed notice under 21 U.S.C. § 851. Hill’s claim of breach
fails, and the plea agreement and its appeal waiver are
enforceable against him. Because Hill’s challenge to the
application of the career offender Guideline falls within the
waiver’s scope, we grant the Government’s request in part and
dismiss this portion of the appeal. Hill, however, preserved
the right to appeal his sentence on the basis of ineffective
assistance of counsel. Consequently, we deny the Government’s
request to dismiss in part.
Turning, then, to Hill’s unwaived claim of ineffective
assistance of counsel, this claim is more appropriately raised
in a motion filed pursuant to 28 U.S.C.A. § 2255 (West Supp.
2010), unless counsel’s ineffectiveness conclusively appears on
the record. See United States v. Richardson, 195 F.3d 192, 198
(4th Cir. 1999). Because we find no conclusive evidence on the
face of the present record that trial counsel rendered
ineffective assistance, we decline to address the merits of this
claim on direct appeal. Accordingly, we affirm in part.
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We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
DISMISSED IN PART;
AFFIRMED IN PART
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